Grinberg v Luna Park Hous. Corp.

[*1] Grinberg v Luna Park Hous. Corp. 2009 NY Slip Op 50398(U) [22 Misc 3d 1131(A)] Decided on March 9, 2009 Supreme Court, Kings County Knipel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2009
Supreme Court, Kings County

Inna Grinberg, Plaintiff,

against

Luna Park Housing Corporation & Douglas Elliman Property Management, Defendants.



26937/06



Attorneys for Plaintiff

Patricia McHugh, Esq.

Law Offices of William Pager

470 Kings Highway

Brooklyn, NY 11223

(718) 998-1010

Attorneys for Defendants

Scott C. Tuttle, Esq.

McManus, Collura & Richter, P.C.

48 Wall Street - 25th Fl.

New York, NY 10005

(212) 425-3100

Lawrence Knipel, J.

In this action to recover damages for personal injuries, defendants move for summary judgment dismissing the complaint.

In her complaint, plaintiff alleges that on August 28, 2006, she "was caused to trip and/or slip and fall and sustain serious and permanent injuries" while on the 14th floor of the subject premises, owned and managed by defendants. In her bill of particulars alleges that the accident was caused "by the existence of a dangerous, hazardous, uneven, slip-like condition, including more specifically [*2]accumulated water, which existed on the hallway of the 14th Floor." Plaintiff alleged it rained the day before.

At her deposition, plaintiff testified that the fall occurred on the 14th floor terrace as she was entering an internal corridor to her apartment. She testified that "The terrace was full of water" and "when I opened the door to my corridor from the terrace, I got in a puddle on the terrace and went into the corridor, I was already flying." She noticed the accumulation of water on the terrace before, and she knows "there was a big hole on the terrace full of water." The hole was there at the time of the deposition (November 1, 2007).

In support of their motion, defendants confirm that the terrace was open to the elements, but that it was sloped so that the water could run off to several floor drains. Defendants argue that there was no evidence that the terrace was defective. Further, they contend, there was no evidence of notice of an alleged defect. The building superintendent testified at his examination before trial that there were no complaints regarding the 14th floor terrace, and that there were never any prior incidents where someone fell inside due to the accumulation of water on the outside terrace.

Defendants submit an affidavit of a licensed professional engineer which states, among other things, that the section of the approach leading to the doorway plaintiff was entering has a rough, concrete finish for a distance of 16 feet 8 inches from the doorway, and has a slope measurement of one in 80. The slope will cause water to run off to the main section of the terrace which has numerous floor drains, the nearest of which was within 25 feet of the subject doorway. Although plaintiff described a big hole, the engineer "did not find any condition that could be characterized as a big hole'" and did not find any patches or fresh concrete on the approach walkway. He did find a "small depression in the concrete approximately 3 feet from the doorway and toward the right edge of the external terrace, out of the normal path of travel" which had a depth of 1/4 inch and was 1.5 inches long and 1.5 inches wide. The expert concluded that the surface of the external terrace was not a factor in the accident.

In opposition, plaintiff annexes photographs which allegedly show a maintenance man sweeping accumulated water on the 14th floor terrace two days after the rain. These photographs, it is argued, and plaintiff's testimony that defendants "don't clean the water until it dries" suggest that there was notice of clogged drains. Further, is argued, defendants' acknowledgment of complaints about water accumulation on other floors represent questions of fact as to defect and constructive notice which cannot be resolved until a trial.

An affidavit of plaintiff's husband is annexed, wherein it is stated that when he left home earlier that day of the accident, the terrace was full of water, and when he returned later that day the terrace was full of water. Water accumulates every time it rains and stays there for days. There are "big depressions" on the terrace, and the drains clog regularly. He mentioned the water problem to the maintenance staff "on more than one occasion." He further stated the photographs annexed were taken in his presence August 30, 2006, and that there was a lot more water on the day of the incident.

In reply, defendants maintain that the terrace is not defective, since it is external and "the mere fact that an outdoor walkway becomes wet from rain will not establish the existence of a dangerous condition." Moreover, it is argued, plaintiffs have failed to show that defendants had actual or constructive notice of the alleged defect. The maintenance folder contains numerous and detailed complaints by the Grinbergs, but nothing about water accumulation. Moreover, it is argued, [*3]even if plaintiff's husband had "mentioned" the water problem, it is insufficient to establish notice and cannot defeat defendant's motion for summary judgment.

In order to sustain a slip and fall accident case, there must be a the showing that the defendants breached a duty of care owed to the injured party and that said breach proximately caused the resulting accident and injury. Further, a plaintiff must show that the alleged defendants either created the alleged hazardous condition or that they had actual or constructive notice of it. (See Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994] [Defendants' restaurant entitled to judgment notwithstanding the verdict, since the evidence did not establish it had either actual or constructive notice of the hazardous condition that caused plaintiff to slip and fall; a general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall] ; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Medina v Sears, Roebuck and Co., 41 AD3d 798 [2d Dept. 2007][To impose liability upon a defendant in a slip-and-fall case, there must be evidence tending to show the existence of a dangerous condition and that the defendant either created the defect or had actual or constructive notice of it]).

Thus, summary judgment was appropriate when plaintiff slipped and fell on an elevated outdoor deck (Sadowsky v 2175 Wantagh Ave. Corp., 281 AD2d 407 [2d Dept. 2001][The fact that the deck recurrently became wet from rain does not impose liability; there was no evidence the deck was improperly constructed or designed], or when plaintiff slipped and fell on an uncovered ramp which was wet from rain (Medina v Sears Roebuck, supra [The mere fact the ramp became wet from the rain was insufficient to establish the existence of a dangerous condition], or when plaintiff slipped and fell on defendants' blacktop driveway while it was raining (Richardson v Campenelli, 297 AD2d 794 [2d Dept. 2002][There was no evidence that the apron was improperly constructed or designed]).

To constitute constructive notice, a hazardous defect must be visible and apparent and it must exist for sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (see, Gordon v. American Museum of Natural History, supra). It has been held that a plaintiff may satisfy this burden by evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the defendant (see Erikson v J.L.B. Realty Corp., 12 AD3d 344 [2d Dept. 2004][Evidence submitted by supermarket in support of its motion for summary judgment demonstrated it had actual notice of a particular recurring condition that was reasonably within its power to correct, and was therefore "more than a mere general awareness that a recurring dangerous condition may have existed"]; Uhlich v Canada Dry Bottling Co. Of New York, 305 AD2d 107[1st Dept. 2003] [A triable issue of fact was raised as to a recurring condition when plaintiff offered evidence he observed garbage, debris, potholes and obstructive vehicles in the area he traversed and that he made specific complaints to the responsible party about the garbage]; David v New York City Housing Auth., 284 AD2d 169 [1st Dept. 2001][Evidence suggested the condition causing the accident, water that accumulated in an internal stairwell, was reoccurring over a period of time with each successive rainfall "thereby putting the defendant on constructive notice of the condition"]).

Here, plaintiff alleges she was injured after a slip and fall from accumulated rainwater on the 14th floor outdoor hallway. Defendants have submitted an affidavit from a licensed professional [*4]engineer who, after examining the outdoor hallway, found no defects that could have caused plaintiff's fall. On the contrary, the hallway had a non-skid surface and was properly sloped. Plaintiff has failed to submit substantial evidence (expert or other) indicating otherwise. Specifically, defendant's engineer looked for and could not find a big hole that plaintiff and her husband contend was and is on the terrace. Nor has plaintiff shown any evidence why a stuffed drain or any other defect on some other floor would indicate that such a defect existed on the 14th floor.

Plaintiff has furthermore failed to show that defendants had actual or constructive notice of any alleged defect. Plaintiff testified at her examination before trial that she did not report any problem with the outdoor hallway. The affidavit of plaintiff's husband merely states that he "mentioned" the water problem to the maintenance staff, despite plaintiffs otherwise copious maintenance folder (Exhibit G to the moving papers) which fails to document any complaint of water accumulation in the outdoor hallway. At best, plaintiff has shown merely that defendants had a "general awareness" of a possible water problem, which is insufficient to establish notice. Relevant in this regard is Exhibit F to the moving papers, which is a weather report from the National Weather Service, indicating that it rained continuously from 7:00 AM to 6:00 PM the day before the accident and that it rained again on the day of the accident until 9:00 AM, six hours before plaintiff's alleged fall "at or about 3:00 PM."

In sum, plaintiff has failed to raise a question of fact as to defect or notice. To the extent plaintiff has attempted to demonstrate a recurrent condition of water accumulation on the 14th floor, that contention is likewise without merit (see Solazzo v New York City Transit Auth., 21 AD3d 735 [1st Dept. 2005][At most, plaintiff proved that defendants had a general awareness that water may be present on the station floor during periods of inclement weather]; Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 [2d Dept. 2002][Defendant's general awareness that patrons of the bar might spill their drinks on the dance floor does not obviate plaintiff's obligation to establish that defendant had actual or constructive notice of the particular condition which caused her to fall]).

Accordingly, defendants' motion for summary judgment is granted, and the complaint is dismissed.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.